Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. LC058907, Wendell Mortimer, Jr., Judge. Affirmed.
Novak & Ben-Cohen and Sean M. Novak for Plaintiff and Appellant.
LHB Pacific Law Partners, Clarke B. Holland and Lisa L. Kirk; Crandall, Wade & Lowe and Michael J. McGuire; Robie & Matthai and James R. Robie for Defendant and Respondent.
OPINION
JOHNSON, J.
James Young appeals from a judgment entered after the trial court granted summary judgment in favor of State Farm Fire and Casualty Company (State Farm) in this action alleging breach of an insurance contract and bad faith. Young contends the trial court improperly excluded declarations from his expert witnesses and resolved factual disputes which should have gone to the jury. We affirm the summary judgment on two grounds: First, the appellant’s appendix Young submitted on appeal -- which includes a selective and small portion of the papers and exhibits he filed in opposition to State Farm’s summary judgment motion and none of State Farm’s moving or reply papers -- is inadequate for this court to review the trial court’s order granting summary judgment. Second, in considering the respondent’s appendix State Farm submitted to assist this court in reviewing the merits of the matter, we find State Farm met its burden on summary judgment and Young has not shown a triable issue of material fact on either of his causes of action.
FACTS AND PROCEEDINGS BELOW
State Farm issued an earthquake insurance policy to Young which covered his residence in Canoga Park, California at the time of the Northridge earthquake on January 17, 1994. The policy had a limit of coverage for damage caused by the earthquake of $180,000, with a five percent deductible ($9,000).
On or about January 20, 1994, Young made a claim to State Farm for damage to his residence caused by the Northridge earthquake. State Farm inspected the property on May 2, 1994. Based on its inspection, State Farm estimated the building damage loss to Young’s property caused by the earthquake totaled $75,264.40. As summarized in State Farm’s respondent’s brief, “Included in State Farm’s estimate were repairs for cracking and separations in the exterior concrete, decking, and pool coping; sandblasting and color coating the exterior stucco; drywall repairs and painting to all interior rooms; and the replacement of kitchen appliances, two fireplaces, and the garage foundation.” Young met with a State Farm adjuster on May 11, 1994 and submitted forms listing the amount of earthquake damage to the contents of his home which he claimed totaled $27,751.97.
When Young first made his claim for earthquake damage, State Farm did not believe Young had purchased an earthquake insurance policy. After State Farm investigated the matter, it determined Young had never signed any papers declining earthquake coverage. Due to its mistake, State Farm offered Young earthquake coverage which Young accepted. State Farm issued the policy retroactive to August 2, 1993.
On May 17, 1994, State Farm sent Young a check for $23,693.72, which represented the amount Young claimed in contents damage, minus $4,058.25 in depreciation. The following day, State Farm sent Young a check for $63,627.38, which represented the amount State Farm believed was necessary for earthquake repairs for Young’s building damage loss, minus $2,637.02 in depreciation and the $9,000 deductible. Along with the second payment, State Farm sent Young a letter explaining replacement cost benefits (including depreciation) were available to him under the earthquake policy for his contents damage and his building damage loss if he made repairs or replaced the property in the manner specified in the policy.
State Farm also retained an engineer to inspect Young’s property. This inspection occurred on May 20, 1994. The engineer concluded Young’s property sustained “moderate damage” in the earthquake, explaining: “At the front of the house, gaps have formed between the house and the concrete, especially at the south west corner. This area may be patched cosmetically, since no structural distress is expected. At the rear concrete pool deck, the differential movement of the house, pool, and concrete pool deck created widening of existing cracks and allowed new cracks and displacements to occur. [¶] . . . [¶] Because no serious structural distress has occurred to the house or its foundations, the repair and replacement of the pool deck and of the damaged portion of the pool will restore this area to the condition that existed prior to the earthquake. The only structural repairs are those to the pool shell itself, because of the long crack which in itself pre-existed the earthquake.”
Based on the engineer’s report, an estimate of the costs to repair the pool submitted by Young, and a further inspection of the property, State Farm prepared a revised cost of repair estimate for Young’s residence which reflected a total building damage loss of $81,844.95. On August 23, 1994, State Farm sent Young an additional check for $7,218.25, which included a $1,999.32 deduction for depreciation. At the time it made this payment, State Farm again informed Young about the availability of replacement cost benefits. Young did not make a claim for such benefits or inform State Farm he had repaired or replaced or intended to repair or replace any of his property damaged in the Northridge earthquake.
About seven years later, on or about November 20, 2001, Young contacted State Farm and asked it to review his 1994 Northridge earthquake claim. State Farm informed Young it would need to inspect his property. A date was set for the inspection. Thereafter, Young submitted to State Farm a “repair estimate” for the property totaling $379,046.22 which purportedly was prepared by Cleve Goodwin, someone Young had authorized to act as his public adjuster.
In reality, Goodwin was not a licensed public adjuster or a licensed contractor. Nor was he employed by Vine Construction Company, the business entity whose letterhead and license number he used on his repair estimate.
On December 14, 2001, a State Farm adjuster and engineer State Farm had retained appeared at Young’s home for the inspection. Young agreed to let them inspect his property. During the inspection, however, Young became upset because he believed the engineer was acting in bad faith and was intentionally underestimating the extent of what Young claimed was remaining Northridge earthquake damage. Young threatened State Farm’s adjuster and engineer with physical violence if they did not conduct the inspection in a manner to his liking (a fact he readily admitted at his deposition). Then Young terminated the inspection and demanded they leave his residence.
For example, in a declaration submitted in opposition to State Farm’s motion for summary judgment, Young stated, “the recommendation by [State Farm]’s ‘expert’ [engineer] that the cracks and damage to my foundation and concrete slab could be patched with epoxy was absolutely ridiculous.”
State Farm arranged for a different engineer to conduct an inspection of Young’s property. A date was set for the inspection. The engineer informed State Farm Young missed the appointment. State Farm attempted to contact Young several times in an effort to reschedule the inspection. State Farm also told Young he could talk to another State Farm representative if he was unhappy with the current adjuster. Young did not respond to these communications. Nor did he respond to State Farm’s request for receipts for earthquake repairs he had made during the previous eight years.
On April 8, 2002, State Farm sent Young a letter stating it was closing the file on his earthquake claim due to his lack of cooperation in resolving the claim. Unbeknownst to State Farm, Young already had filed this litigation on or about December 28, 2001. During the course of the litigation, Young made repairs to his property for what he claimed was Northridge earthquake damage without first informing State Farm he intended to make the repairs or giving State Farm an opportunity to inspect the property before the repair work commenced.
Young filed his complaint under Code of Civil Procedure section 340.9 which revived the statute of limitations on his Northridge earthquake claim and allowed him to file an action against State Farm based on that claim until January 1, 2002. On appeal, Young argues the trial court’s grant of summary judgment “has frustrated the Legislature’s enactment of Code of Civil Procedure § 340.9.” This argument has no merit. By its express terms, section 340.9 did nothing more than revive the statute of limitations on Young’s Northridge earthquake claim. It had no effect whatsoever on the substantive merits of that claim.
Young’s complaint is not included in the record on appeal, but apparently he asserted causes of action against State Farm for breach of the insurance contract and breach of the covenant of good faith and fair dealing. State Farm answered the complaint and, on February 24, 2006, moved for summary judgment or in the alternative summary adjudication. State Farm asserted it had paid all benefits it owed to Young under the insurance contract, based on its own inspection, that of its engineer, and information provided by Young. The expert engineer State Farm retained during the course of the litigation, who inspected the property on August 31, 2005, submitted a declaration in which he concluded the earthquake did not cause any structural damage to Young’s property, and the estimate of earthquake-related damage State Farm prepared in 1994 was over-inclusive and more than adequate to allow Young to repair all earthquake damage. State Farm also argued Young is the party who breached the insurance contract by failing to allow State Farm to inspect the property in 2001 when he requested a review of his 1994 earthquake claim, and by making repairs to the property “without either advising State Farm or maintaining repair records, ” among other things.
This court does not have a complete record of what Young filed in opposition to State Farm’s summary judgment motion because Young’s appellant’s appendix includes only a selective and small portion of the opposition papers and supporting exhibits. It does include 17 pages (not including duplicate copies) of what appear to be invoices and proposals for repair work at Young’s residence, bearing dates ranging from 1994 until after this litigation commenced. The appendix also includes the Cleve Goodwin repair estimate described above, and another chart listing vague descriptions of repairs purportedly made between 1994 and 2003 and the names of persons (in some cases first names only) and companies who apparently did the repair work. It is not clear from the record who prepared this chart, which Young refers to as a “Home Repair Matrix.” Young also included in his appendix copies of photographs he claims show earthquake damage at his residence. State Farm objected to all of this evidence below on numerous grounds, including the evidence lacks foundation, is vague, ambiguous, misleading and speculative.
State Farm supplied this court with its moving and reply papers and the trial court’s order granting the summary judgment motion.
Young also submitted his own declaration in opposition to State Farm’s motion in which he asserted State Farm intentionally under-compensated him for the earthquake damage at his residence. He “estimate[d]” he had spent more than $200,000 on earthquake-related repairs and stated he had “been able to locate receipts that clearly document $107,064.92 of this amount.” Young also asserted State Farm “never provided a clear explanation of procedures for receiving reimbursement of depreciation unfairly withheld by [State Farm].” State Farm objected to all of these statements in Young’s declaration on numerous grounds, including lack of foundation, speculation and improper conclusions of fact and law. State Farm pointed out: “Young testified at his deposition that he was neither a contractor nor an engineer, and that he had no way of knowing what damage to his house was or was not earthquake damage.”
Young also submitted declarations from his two expert witnesses, both of whom specialize in the field of accident reconstruction (i.e., “Slip- or Trip-and-Fall Accidents” as indicated on the curriculum vitae submitted for each expert). According to Young’s experts, State Farm inadequately compensated Young for earthquake damage and Young’s “home continues to have substantial structural damage that was directly caused by the Northridge Earthquake.” State Farm objected to these declarations on numerous grounds, including these experts were not qualified to render opinions about “civil or structural engineering, the effects of earthquakes on the performance of buildings, construction, repair, or any other subject relevant to this case, ” and their opinions were “based on speculative, inadmissible and unreliable matters, including the Goodwin estimate.”
Young did not provide this court with a copy of his memorandum of points and authorities in opposition to the summary judgment motion so it is not clear what arguments he asserted in his effort to defeat the motion.
On May 12, 2006, the trial court heard oral argument on State Farm’s motion, took the matter under submission and then granted the motion. The court’s order states in pertinent part: “By failing to allow inspection and spoliating evidence, by making extensive changes to the property, [Young] has violated the terms and conditions of the policy. Numerous experts agree that the property was and remains free of structural defects [citation]. [¶] [State Farm]’s objections to Wilson and Solomon [Young’s experts] declarations in their entirety and portions of Young and Novak [Young’s attorney] declarations are sustained for the reasons stated. [¶] Motion for Summary Judgment is granted. Plaintiff has failed to produce evidence that [State Farm] has withheld any money due under the contract and [State Farm]’s separate statement is not disputed in any meaningful way.”
Any objections Young made to State Farm’s evidence are waived because Young’s counsel did not request a ruling on the objections at the hearing and the trial court did not make one. (Kolodge v. Boyd (2001) 88 Cal.App.4th 349, 358-359, footnotes 1 and 2; Ann M. V. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 670, footnote 1.) Young does not argue otherwise on appeal.
DISCUSSION
I. THE APPELLANT’S APPENDIX YOUNG SUBMITTED IS INADEQUATE FOR THIS COURT TO REVIEW THE MERITS OF THE MATTER ON APPEAL.
Young asserts his appellant’s appendix includes all of the documents this court needs to review the trial court’s order granting summary judgment. The one-volume appendix contains the cover page from his attorney’s declaration and what Young describes as “selected exhibits” which were attached to that declaration in the papers he filed with the trial court. It also contains Young’s declaration and the declarations from his two expert witnesses, Young’s separate statement of disputed facts, the judgment and notice of entry of judgment. Finally, the appendix includes Young’s notice of appeal, request to prepare reporter’s transcript and notice of election to proceed by appendix. At the back of the appellant’s appendix is a 35-page superior court case summary for a group of Northridge earthquake cases involving State Farm, which does not include a record of the documents filed or proceedings held in the trial court in the matter on appeal.
Young’s appellant’s appendix does not contain his complaint or any of the papers State Farm filed in support of its motion for summary judgment. Nor does it include the memorandum of points and authorities Young filed in opposition to the summary judgment motion or the majority of the three volumes of exhibits Young apparently submitted with his opposition. The appendix does not even include the trial court’s order granting summary judgment.
The superior court case summary State Farm included in its respondent’s appendix indicates Young filed three volumes of exhibits in opposition to the summary judgment motion.
Moreover, Young did not include documents from which this court could piece together the underlying facts of the case. For example, the appellant’s appendix does not contain the insurance policy at issue or documents showing State Farm’s efforts to resolve Young’s claim or payments made under the policy. In short, Young included only those documents he believed would help his case.
Young asserts any document filed in connection with State Farm’s summary judgment motion which is missing from his appendix is irrelevant to this court’s review of the order granting summary judgment or “actually support[s] [his] claim.” He also states, to the extent we need to review documents he has not supplied, the trial court’s file is “available” for our review. The cavalier manner in which Young and his counsel address this issue is an insult to the court. We should not be forced to educate an appellant’s counsel about such an elementary point of appellate practice as what documents must be submitted to the court when the appellant asks this court to review an order granting summary judgment.
The California Rules of Court require an appellant who elects to proceed by appendix to include, among other things, any document filed in the trial court which “is necessary for proper consideration of the issues, including . . . any item that the appellant should reasonably assume the respondent will rely on.” It is axiomatic a review of State Farm’s motion for summary judgment and supporting papers undoubtedly is necessary for our proper consideration of the order granting State Farm’s motion for summary judgment. The trial court’s order itself is another document we cannot do without if Young wants this court to decide the merits of his appeal. Without the order how are we to know whether the court sustained objections to evidence and whether evidence was properly or improperly excluded? We need not go on and list all of the other documents Young improperly omitted from his appendix. His and his counsel’s blatant disregard for our court rules is abundantly clear.
On appeal, we presume a judgment of the trial court is correct. “‘All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.’” To prevail on appeal, a party must provide an adequate appellate record demonstrating error. “[I]f the particular form of record appears to show any need for speculation or inference in determining whether error occurred, the record is inadequate.” When an appellant fails to provide an adequate record on appeal, we may presume the judgment is proper and affirm.
Denham v. Superior Court (1970) 2 Cal.3d 557, 564, italics added; In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.
Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.
Eisenberg et al., California Practice Guide: Civil Appeals and Writs (The Rutter Group 2006) paragraph 4:43, page 4-11, italics omitted.
See Estrada v. Ramirez (1999) 71 Cal.App.4th 618, 620, footnote 1.
The appendix Young submitted on appeal is not sufficient for this court to determine whether the trial court erred in granting State Farm’s summary judgment motion. Had State Farm not filed a respondent’s appendix including all of the papers it filed in connection with its motion for summary judgment and the trial court’s order granting summary judgment, our opinion would end here. Given State Farm has provided a more complete picture of the proceedings below, we will review the matter on the merits and decide whether State Farm met its burden on summary judgment and whether Young has shown a triable issue of material fact on either of his causes of action.
II. STANDARD OF REVIEW
Summary judgment is proper where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. “We review the trial court’s decision de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports. [Citation.]” In the trial court, a defendant “has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.”
Code of Civil Procedure section 437c, subdivision (c).
Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.
Code of Civil Procedure section 437c, subdivision (p)(2).
As our Supreme Court has made clear, a defendant moving for summary judgment “has shown that the plaintiff cannot establish at least one element of the cause of action by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence: The defendant must show that the plaintiff does not possess needed evidence, because otherwise the plaintiff might be able to establish the elements of the cause of action; the defendant must also show that the plaintiff cannot reasonably obtain needed evidence, because the plaintiff must be allowed a reasonable opportunity to oppose the motion [citation].” The defendant does not meet its burden on summary judgment “simply” by pointing out the “‘absence of evidence to support’ an element of the plaintiff’s cause of action [citation] . . . .”
Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4th 826, 854; see Gaggero v. Yura (2003) 108 Cal.App.4th 884, 889-890, 891-892.
Aguilar v. Atlantic Richfield Company, supra, 25 Cal.4th at page 855, footnote 23.
We apply an abuse of discretion standard when we review whether the trial court properly excluded expert declarations and other evidence Young submitted in opposition to State Farm’s motion for summary judgment.
People v. Martinez (1998) 62 Cal.App.4th 1454, 1459 (“‘Broadly speaking, an appellate court reviews any ruling by a trial court as to the admissibility of evidence for abuse of discretion’”); Jackson v. Deft, Inc. (1990) 223 Cal.App.3d 1305, 1319-1320 (“a reviewing court will uphold the trial court’s ruling on the question of an expert’s qualifications absent an abuse of discretion”).
III. THE TRIAL COURT PROPERLY GRANTED SUMMARY JUDGMENT.
A. State Farm Satisfied Its Initial Burden of Demonstrating Young Could Not Establish Necessary Elements of His Causes of Action.
Under the “Loss Settlement” provisions of Young’s earthquake policy with State Farm, Young was entitled to be paid either the actual cash value or the replacement cost of property damaged by the Northridge earthquake. State Farm was not obligated to make a payment based on replacement cost (without deduction for depreciation) unless and until the damaged property was actually repaired or replaced. In making a claim under the earthquake policy, Young had a duty to provide State Farm with “detailed estimates for repair of any damage, ” a duty to “keep an accurate record of repair expenditures, ” and a duty to “exhibit the damaged property” upon State Farm’s reasonable request.
Earthquake Policy, Conditions, paragraph 4.
Earthquake Policy, Conditions, paragraph 2(b), (d)(1) and (e)(5).
The undisputed evidence presented in connection with State Farm’s motion for summary judgment demonstrates: State Farm paid Young $70,845.63 under the earthquake policy, representing what it determined to be the actual cash value of Young’s building damage loss, minus the $9,000 deductible. State Farm based its determination of actual cash value on inspections of the property conducted by its adjuster and engineer and receipts and estimates submitted by Young. State Farm also paid Young $23,693.72, representing the actual cash value of Young’s contents damage. This figure was based solely on Young’s own estimate of his contents damage. When it made these payments, State Farm informed Young replacement cost benefits (including depreciation) were available to him under the earthquake policy for his building damage loss and his contents damage if he made repairs or replaced the property in the manner specified in the policy. Young did not make a claim for replacement cost benefits pursuant to the terms of the policy. And he did not complain about the amount of the payments he received until more than seven years later.
In connection with its summary judgment motion State Farm submitted a declaration from its expert witness, John Osteraas, Ph.D., P.E, a California licensed professional engineer and general contractor who also is certified in the practice of structural engineering by the Structural Engineering Certification Board. As set forth in his declaration, in rendering his opinions, Dr. Osteraas “reviewed various documents, including State Farm 1994 repair estimates, an engineering report by Palos Verdes Engineering [who conducted inspections on behalf of State Farm in 1994], photographs of the property, an estimate prepared by Cleve Goodwin, invoices and proposals produced by [Young], and [Young]’s deposition.” Dr. Osteraas also inspected the property himself on August 31, 2005. He concluded the earthquake did not cause any structural damage to Young’s property, and the estimate of earthquake-related damage State Farm prepared in 1994 was over-inclusive and more than adequate to allow Young to repair all earthquake damage.
This evidence indicates State Farm fairly compensated Young in 1994 for all damage to his property sustained in the Northridge earthquake, and State Farm did not breach the insurance contract. State Farm also presented undisputed evidence demonstrating Young breached the insurance contract by failing to keep an accurate record of the repairs he made to the property and refusing to allow State Farm to inspect the property in 2001 before he made additional repairs and remodeled portions of his home.
Based on the foregoing, State Farm satisfied its initial burden on summary judgment as to the causes of action for breach of contract and breach of the implied covenant of good faith and fair dealing. Thus, the burden shifted to Young to show a triable issue of material fact.
B. Young Failed to Present Competent Evidence Creating a Triable Issue of Material Fact on Either of His Causes of Action.
In asserting he demonstrated a triable issue of material fact below, Young cites only to evidence the trial court excluded based on State Farm’s objections. For the reasons discussed below, we find the trial court properly sustained State Farm’s objections and excluded this evidence. Accordingly, we conclude Young failed to show a triable issue of material fact.
1. The expert declarations
We turn first to the expert declarations Young submitted. Evidence Code section 720, subdivision (a) provides, “A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert.” “[A]n expert’s qualifications ‘must be related to the particular subject upon which he is giving expert testimony. Qualifications on related subject matter are insufficient. [Citations.]’ [Citation].” An expert also must have a proper foundation for his or her opinion and a “factual basis” for any assumptions made.
People v. Chavez (1985) 39 Cal.3d 823, 828.
Waller v. Southern California Gas Company (1959) 170 Cal.App.2d 747, 753-754, 756.
In reviewing the trial court’s decision to exclude the expert opinions, we apply an abuse of discretion standard. “It is prejudicial error to exclude relevant and material expert evidence where a proper foundation for it has been laid, and the proffered testimony is within the proper scope of expert opinion. [Citation.] Conversely, the courts have the obligation to contain expert testimony within the area of the professed expertise, and to require adequate foundation for the opinion.”
People v. Chavez, supra, 39 Cal.3d at page 828; People v. Martinez, supra, 62 Cal.App.4th at page 1459.
Korsak v. Atlas Hotels, Inc. (1992) 2 Cal.App.4th 1516, 1523.
The trial court properly exercised its discretion in excluding the declarations from Young’s experts because they did not demonstrate they are qualified to render opinions about the earthquake damage to Young’s property. On his curriculum vitae, Matthew T. Wilson, B.S., M.S., DABFE, describes himself as a senior forensic scientist and an associate laboratory director. He “specializes in accident reconstruction as it applies to industrial hazards, transportation accidents, premise analyses, and product assessments.” Kenneth Alvin Solomon, Ph.D., P.E., is a nuclear engineer (with a delinquent California license at the time of the proceedings below). According to his curriculum vitae, he specializes in “accident reconstruction, bio-mechanics, and human factors.” Neither witness has shown he has special knowledge, skill, experience, training, or education which is related to the subject matter of his expert opinions in this matter.
Moreover, both experts based their opinions on documents which the trial court excluded, such as the Goodwin repair estimate and the invoices and proposals Young submitted with his opposition to the summary judgment motion. We discuss the admissibility of these documents below.
2. Young’s declaration
Young also relies on his own declaration in support of his claim State Farm intentionally under-compensated him for the earthquake damage at his residence. Yet he does not argue on appeal the trial court improperly sustained State Farm’s objections to the very portions of his declaration he cites. We find the trial court’s ruling was a proper exercise of its discretion given Young admitted at his deposition he has no way of knowing on his own what is or is not earthquake damage.
3. Exhibits attached to the declaration of Young’s attorney
Appellant’s appendix includes the cover page from his attorney’s declaration and “selected exhibits” which apparently were attached to it. These exhibits include the Goodwin repair estimate, the so-called Home Repair Matrix, the 17 pages of what appear to be invoices and proposals for repairs to Young’s property and copies of photographs Young claims show earthquake damage to his property. In sustaining State Farm’s objections to portions of the declaration of Young’s attorney, the trial court necessarily excluded all of these documents. On appeal, Young does not argue the trial court improperly sustained these objections.
In any event, regardless of whether the trial court excluded these documents, we cannot consider them because we have no way of knowing what they represent and how they are significant (if at all) to Young’s claim State Farm did not fairly compensate him for earthquake damage to his property. Young did not include in his appendix the portions of his attorney’s declaration which purport to lay a foundation for these documents. On their face, these documents do not show how much Young paid for earthquake repairs or how much earthquake damage still exists at his residence, and they certainly do not show State Farm unfairly compensated Young for earthquake damage in 1994 or improperly withheld depreciation.
Clearly, Young failed to present competent evidence creating a triable issue of material fact on either of his causes of action. Accordingly, summary judgment was proper.
Young argues, apparently for the first time on appeal, he “has been unfairly denied full discovery in this matter” and the trial court should have denied the summary judgment motion on this basis. Young does not state what discovery he has not been able to conduct other than expert witness depositions. And he does not explain what information he hopes to elicit from these depositions or how any such information could possibly help him create a triable issue of material fact. We reject Young’s last-ditch and disingenuous effort to save this lawsuit.
Code of Civil Procedure section 437c, subdivision (h).
DISPOSITION
The judgment is affirmed. Respondent is entitled to recover its costs on appeal.
We concur: PERLUSS, P. J., WOODS, J.